UK: Think Before You Send: The High Court Finds A Former Employer Liable For A Negligently Written E-Mail

The principle that reference-givers must choose their words
carefully to avoid liability for negligence is well known to HR
professionals. The key point in the recent High Court case of
McKie v Swindon College, is that the principle that
careless words can give rise to a claim for damages for negligence,
is not confined to references. It will equally apply to other forms
of communication about former employees that cause financial loss,
such as, in Mr McKie's case, a carelessly written e-mail. In
this case, the judge found that the College was liable in
negligence to Mr McKie, who had worked for the College six years
earlier, after his new employer, the University of Bath, acted on
the e-mail by ending Mr McKie's employment.

Mr McKie worked at Swindon College between 1995 and 2002. His
career progressed well, he was promoted and received bonuses and
when he left to go to work for Bath City College, he received
excellent and detailed references. He worked at Bath City College
for five years, went briefly to Bristol City College and then in
May 2008 took up a new role at the University of Bath.

The University of Bath oversees degree courses at certain
further education colleges, including Swindon College. Part of Mr
McKie's duties in his new post involved liaising with and
visiting these colleges, including Swindon. On 5 June 2008, shortly
after he had started work at the University of Bath, an email was
sent by Robert Rowe, Human Resources Manager at Swindon to his
equivalent at the University of Bath. It said:

"Further to our telephone conversation I can confirm to
you that we would be unable to accept Rob McKie on our premises or
delivering to our students. The reason for this is that we had very
real safeguarding concerns for our students and there were serious
staff relationship problems during his employment at this College.
No formal action was taken against Mr McKie because he had left our
employment before this was instigated. I understand that similar
issues arose at the City of Bath College."

The University met with Mr McKie to discuss the concerns raised
by the e-mail and then decided to dismiss him by means of a
procedure that the judge in the High Court described as wholly
unfair. However because Mr McKie had only a few weeks service at
the time, he had no remedy for unfair dismissal against the
University. He did, however, instigate proceedings against Swindon
College for issuing the e-mail, which he claimed was false,
misleading, inaccurate and unfair. His case was that the College
had acted negligently by issuing such an e-mail without checking
its truthfulness or accuracy.

The High Court found that there was no evidence that the
statements Mr Rowe made in the e-mail were true. He had not worked
with Mr McKie and had no personal knowledge of him or his work
history. It was not clear what the basis for the e-mail was nor why
Mr Rowe had written it. At the hearing Mr McKie called eight
witnesses who testified to the high standard of his work at Swindon
College, none of whom had any knowledge of the kinds of concern
mentioned in the e-mail. By contrast, the witness evidence produced
by the College did not support the claims it made about Mr McKie.
The High Court therefore decided that the e-mail had been produced
carelessly: 'we can see that the procedure adopted at
Swindon College giving rise to the sending of the email, can be
described as slapdash, sloppy, failing to comply with any sort of
minimum standards of fairness, certainly any such standards as
would be recognised by any judicial body taking decisions and
disseminating information about another individual'.

Having decided that the e-mail had been carelessly written, the
Court then had to consider whether it made any difference that the
e-mail was not actually a reference. Previous cases had established
that a careless reference did give rise to a possible claim; did
the fact that the statement was not a formal reference make any
difference? The High Court thought not. There was no reason to
limit the principle to statements that were formal references.
Moreover, by choosing to write the statement as it did, the College
assumed duty of care to Mr McKie, even though there was no longer
any employment relationship between them. It was foreseeable that
in the circumstances the e-mail might have an effect on Mr
McKie's employment and that he might therefore suffer economic
loss. The College was therefore liable to compensate Mr McKie for
loss arising from its negligence.

One issue that did not arise in this case, but might in others,
was the possibility that the University might also have had a claim
against the College if it had been able to show that it had
suffered financial or other loss as a result of having terminated
Mr McKie's employment on the strength of negligent statements
by the College. These losses might include unrecoverable
recruitment fees, or other costs of recruiting a replacement.

The message of the case is clear:

Making a statement that might affect the employment or
employment prospects of an individual without first checking the
accuracy of what you are saying may lead to a claim for damages for
negligence;

This is particularly so if the writer of the statement did not
have personal knowledge of the matters addressed in the statement
and does not fully investigate beforehand;

The risk arises whenever it is foreseeable that some financial
loss might result from the steps a third party might take as a
result of the statement, such as terminating someone's
employment or not offering them a job;

The mere fact that some years have elapsed since an individual
worked for the organisation on whose behalf the statement is being
made will make no difference as long as the ex-employee can show
loss and the loss has been caused by the negligent statement;

Although the case deal with an employment relationship, the
principle it sets out could conceivably be extended to other
relationships where a duty of care can be shown. This could
possibly cover individuals other than former employees such as
non-executive directors, consultants or volunteers.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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